One of the most insidious harms that can occur in commercial matters is when a small company, investor, or entrepreneur is unfairly deprived of a chance to grow or develop their business. This is commonly referred to as loss of a business opportunity and can happen in many ways, including betrayal by someone thought to be a trusted partner who takes for themselves all the benefit of your hard work, vision, and superior foresight, but also misconduct by another business that goes far beyond the bounds of any notion of legitimate competition like intentional business torts.
Wright Commercial Litigation deals with all kinds of harm to any size business enterprise but is particularly attuned to helping small businesses, shareholders, partners, individual owners, and others throughout the Dallas-Fort Worth area and all of Texas in need of a sharp attorney at a lower cost than usual to stand up to the dishonest practices of another and recoup all the past and future losses of what is rightfully your own. Principal attorney Jason E. Wright has litigated cases in Texas involving intentional business torts, economic torts, exclusive distribution rights, mineral interest owners duped by securities fraud, small developers of oil and gas or real estate projects unfairly squeezed out of a deal, disputes over long-term supply and outputs contracts in rapidly shifting market conditions, private equity portfolio companies, and many others. The firm always enjoys helping an underdog in any case involving the deprivation of a business opportunity.
The firm’s dedication to those unfairly harmed in their business is backed up by offering to take such cases on a contingency or hybrid basis when possible. If you were robbed of a chance to start, continue, expand, or otherwise participate in a lucrative business opportunity, then contact Wright Commercial Litigation for a free consultation about your legal options.
Representing Clients in Dallas-Fort Worth, Collin County, McKinney, and Beyond in Texas with “Business Torts”
The loss of a business opportunity can occur in many different scenarios across the spectrum of commercial relationships—everything from a potential or actual partnership, joint venture, licensing arrangement, franchise or distributorship, exclusive purchase, supply, or dealing contract, to claims of unfair competition and even tortious or illegal conduct by an unrelated third party—with the causes of action and remedies available often lumped together under what is broadly labeled “business torts.”
Business torts, also known as economic torts, compensate for any harm directly suffered by a commercial enterprise (or individual investor, owner, shareholder, etc.) in a way similar to individual torts for those suffering an injury or other personal harm. There are two types of economic torts: intentional business torts and negligence business torts. It is easy at times to confuse tortious business conduct with antitrust law, which exists to protect the entire system of competition by ensuring efficient pricing in a market. While anyone can bring an antitrust claim, it requires proving harm to the competition itself and ultimately benefits everyone by acting as a deterrent to practices that disrupt the proper working of a free market. On the other hand, business and economic torts fill in the gap to ensure that free competition is also fair competition when it comes to harms that primarily impact only other individual businesses and ownership interests. That is why it is important to have a knowledgeable business litigation attorney, and Wright Commercial Litigation has adept experience in representing clients throughout Dallas County and Collin County with their intentional business torts and economic torts claims.
Types of Claims Available in Texas for the Impairment of Business Opportunities
The manner in which a small or midsize company, franchisee, developer, investor, or individual business owner may be economically harmed is wide-ranging. The types of claims available could include any one or more of the following:
- Breach of Contract routinely occurs in cases of a lost commercial opportunity, especially with a franchise or distributorship, exclusive dealing arrangement, requirements or output contracts, real estate developers, oil and gas investments, and others. Some large corporate behemoths do not hesitate to offer up all kinds of assurances then reverse course whenever most convenient to their bottom line. That’s just business to them. Wright Commercial Litigation enjoys righting such wrongs by taking cases on contingency for the underestimated victim.
- Breach of fiduciary duty is routine in the context of a lost business opportunity and is classified as an intentional business tort in Texas. Fiduciary relationships may be established by way of operating agreements, partnerships, shareholder agreements, LLC or company agreements, or any special relationship of trust. In the case of a lost business opportunity, it may be a partner, agent, or majority shareholder who secretly does not disclose a valuable opportunity to divert or usurp it for themselves.
- Conversion is a type of intentional business tort and civil theft that occurs when one party takes, acquires, or keeps goods or assets of another for its own benefit without permission. In the commercial context, that may occur in connection with a dispute where one party does not provide a refund when due or improperly detains the money or property belonging to another as leverage. In certain circumstances, a civil conversion can even rise to the level of criminal theft, which may be exempt from Texas’s statutory cap on exemplary damages due to the Theft Liability Act.
- Fraud, Fraudulent Misrepresentation, and Omission can be issues with any statement of fact that is false or when key information is not disclosed, so long as it was known to be incorrect (or recklessly asserted without knowledge of its truth) and done with the intent for someone to take action. In the context of lost business opportunities, such a claim may exist in the form of causing a business or individual to spend money or capital in reliance on a future opportunity, investment, benefit, or right, or by fraudulent inducement to purchase or contribute money, work, or other value. There are also innocent misrepresentations, where the defendant says a statement they believed was true turned out to be false, and the defendant should have known better.
- Negligent Misrepresentation, Securities Fraud, and Statutory Fraud are claims that, unlike fraud, do not require showing intent to make a false statement actionable. Providing false information in a negligent manner for business transactions can give rise to a claim and Texas has decided some matters—securities investments, the sale of real estate, stock transactions—require even less to prevent unjust outcomes. Although sellers often look for loopholes or exemptions to avoid these laws, negligent misrepresentation means that defrauded investors typically have a legitimate cause of action despite all their efforts.
- Tortious Interference claims can exist in Texas whenever the business relationship harmed was one that already existed as well as those that legitimately involved a prospective client. The type of interference can be any number of tortious acts, such as making false claims that disparage a business or discourage its customers but also unlawfully inducing a customer or vendor to breach, terminate, or be unable to perform a promise. The law in this area can get complicated though since ordinary competition (i.e., someone else offering a lower price) is almost always not sufficient.
- Unfair Competition is an area of common law in Texas often mistakenly considered to be synonymous with trade secrets and trademark litigation when the doctrine can be used to provide a remedy to businesses harmed by any unfair, unlawful, or dishonest conduct of a competitor. The doctrine in Texas complements antitrust law by providing a remedy even when wrongful acts do not rise to the level of stifling competition itself or creating a monopoly. Wright Commercial Litigation has a unique insight into the broader application of this rarely used area of Texas law and can help you leverage it to obtain a recovery where others may think none is possible.
Legal Remedies in Texas for the Loss of a Business Opportunity
A plaintiff that prevails in a case involving economic torts, the loss of business rights, or opportunities, may be able to recover contract damages (if a contract or promise is involved) or losses related to a “business tort,” which, depending on the nature of the claim and parties involved, may include any one or more of the following remedies:
- Fair market value of a business can be received as compensation if it was destroyed by misconduct. This is typically established by a business valuation expert, although an owner can provide proof of lost value as well.
- Benefit-of-the-bargain damages are intended to put an injured business or party in the same economic position they would have been absent the violation.
- Out-of-pocket damages compensate for actual harm suffered as opposed to anticipated losses by calculating the difference between what a person paid and the value received.
- Reliance damages reimburse for expenditures made as a direct result of the defendant’s wrongful actions or conduct.
- Lost profits can be recovered for the past and into the future as well, as measured by a net loss (not gross income), with the future losses being discounted to present value. Lost profits can be recovered even for an anticipated new business venture that never got started if shown with reasonable certainty.
- Profit disgorgement is an equitable option available for breaches of fiduciary duty and other claims that prevent a defendant from benefiting in any way from its own misconduct.
- Constructive trust allows a plaintiff to trace the proceeds of fraud or other misconduct to a specific property, similar to how a fraudulent transfer claim works.
- Loss of goodwill is money damages for a breach that harms a business’s intangible reputation or the loss of other advantages beyond just the paper value of its assets.
- Loss of credit/financing is compensation for a diminished ability to borrow money or obtain goods on time and can include the differences changed in interest rates that resulted from the harm.
- Exemplary damages penalize a defendant for outrageous, malicious, or fraudulent conduct. They are limited in Texas to twice the economic damages (plus $750,000 in noneconomic harm) or $200,000, whichever is greater. Other statutes in Texas—like the DTPA and bad faith insurance claims—allow for treble damages on their own.
- Attorney’s fees are recoverable if provided by a contract, statute, or in equity (which is a limited addition). Loss of a business opportunity can invoke either of those two major grounds for recovery attorney’s fees since the loss often involves contract rights or statutory causes of action.
Why You Need a Commercial Litigation Firm for Your Loss of Business Opportunity Case in Dallas-Fort Worth
Economic torts and intentional business torts that lead to a loss of a business opportunity can seriously threaten, undermine, or destroy a business, and is a complex situation that requires extensive fact-gathering, data analysis, expert input, and understanding of the substantive causes of action as well as potential remedies to maximize recovery.
Wright Commercial Litigation leverages the deep experience of its principal attorney—Jason E. Wright, who spent over a decade at two large commercial law firms—to apply his broad understanding of business and the law to provide you with the best chances of recovering all losses and compensating your lost business or reputation. Knowing the harm and damage that result may be catastrophic for a small business or individual investor, the firm backs up its assessments of the merits of a case by often offering to take cases on a contingency or hybrid basis. Contact the firm today to schedule a free consultation.
Wright Commercial Litigation serves clients throughout Texas, including in McKinney, Collin County, Dallas County, and Dallas County with their intentional business tort, economic torts, and loss of business opportunity needs.